PIERRE - The American Cancer Society wants a South Dakota circuit judge to declare the new smoking ban passed by the Legislature “necessary for the immediate preservation of public health” and throw out the request for a statewide vote.
Sioux Falls attorney Richard Casey, representing the American Cancer Society, is claiming in newly filed court papers that South Dakota’s expanded smoking-ban law can’t be referred to a public vote because it would violate the state constitution.
Casey is trying to use a provision of the constitution prohibiting referral of laws passed by the Legislature that “may be necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions.”
The South Dakota Supreme Court has never addressed the specific point regarding public health that Casey has raised, said Rapid City attorney Sara Frankenstein.
Frankenstein represents the four sponsors of the referral petition - Mike Trucano of Deadwood, Mark O’Neill of Henry and Don Rose and Pete Thompson of Sioux Falls - who are seeking a statewide vote in the November 2010 general election.
Casey is attempting to block the vote so that the new broader ban can take effect as soon as possible. The law would ban smoking in bars, restaurants that serve alcohol and casinos. Smoking already is banned in most other business establishments and public buildings.
Developments
Secretary of State Chris Nelson originally ruled there were sufficient valid signatures on the referral petitions for the vote to occur.
Nelson later reversed himself after a challenge was filed by Jennifer Stalley, the South Dakota government affairs director for the American Cancer Society.
The petition sponsors in turn filed a lawsuit seeking a writ of mandamus from Circuit Judge Mark Barnett ordering Nelson to put the referendum on the 2010 ballot.
Judge Barnett has scheduled a hearing on the mandamus request for Aug. 24.
Casey is waiting for the judge to decide if the American Cancer Society Midwest Division and Stalley will be allowed to intervene in the case.
Casey used the same filing to seek intervention and to raise the “immediate preservation of the public health” argument on their behalf.
Judge Barnett hasn’t indicated publicly whether none, some or all of Casey’s motion would be argued at the Aug. 24 hearing.
The Legislature occasionally attaches the “immediate preservation” language - known as an emergency clause - so that a law takes effect immediately upon the governor’s signature rather than the normal starting date of July 1.
Barnett issued an order stopping the expanded smoking-ban law from taking effect while the court case is proceeding.
The smoking ban legislation, HB1240, didn’t contain the “immediate preservation” language. Passage of a law with that clause requires a two-thirds majority in each of the Senate and the House of Representatives.
The smoking ban passed 21-14 in the Senate and 46-23 in the House, short each time of a two-thirds majority.
Affidavit included
Casey’s filings with the court include an affidavit from Stalley. In the sworn statement, she says the American Cancer Society Midwest Division between September 2008 and March 2009 “devoted substantial amounts of time and money to drafting and lobbying efforts in relation to HB1240 through polling, professional fees and events.”
She adds that the efforts “also included researching the effects of secondhand smoke and advancing legislation would benefit the public health.”
She said the Midwest Division so far has spent more than $50,000 specifically in relation to HB1240.
“In addition, the American Cancer Society, Midwest Division, also pays my annual salary, and approximately 80 percent of my time in the last year has been devoted to the passage the smoke free law,” she said.
Several attorneys contacted for this story agreed the “immediate preservation” issue hasn’t been tested in regard to public health in South Dakota.
Prior case
The most recent South Dakota Supreme Court decision regarding use of the “immediate preservation” emergency clause involved the Legislature’s decision to authorize the sale of the South Dakota cement plant and related properties.
Betty Breck of Groton filed a lawsuit attempting to stop the sale. The justices ruled in favor of the Legislature in the March 2001 decision.
One part of the decision said the court found no impropriety in the Legislature’s decision that the sale was essential to the support of state government.
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